Gambella Investment Limited v Registered Trustees of the Pentecostal Assemblies of God (Environment and Land Case E312 of 2024) [2025] KEELC 6142 (KLR) (19 September 2025) (Ruling)

Key Facts

Transaction Type

Issues

• Determining if the Defendant/Applicants have presented sufficient grounds to set aside the consent judgment, such as fraud, misrepresentation, or lack of authority by the trustees who signed the agreement.
• Whether the court is functus officio (no further jurisdiction) after entering a consent judgment, as the court can only appeal such a judgment and not revisit it.
• Assessing whether the Applicant should be granted leave to cross-examine Dr. Martin Oloo regarding the authenticity of his instructions to represent the Defendant in the consent judgment.

Holdings

• The court held that the Applicant did not meet the threshold to set aside the consent judgment. The Applicant’s claims of unauthorized representation and forged signatures were unsupported by evidence. The Trust Deed appointing the trustees was not revoked, and the court lacks jurisdiction to determine the church’s internal leadership disputes. The Applicant also failed to prove the advocate acted fraudulently or without authority.
• The court denied the Applicant’s request to cross-examine Dr. Martin Oloo. It concluded that the application lacked merit since the Applicant did not demonstrate that the advocate’s instructions were invalid or that the consent judgment was improperly obtained. The court upheld the binding nature of the consent judgment and dismissed the application with costs.
• The court determined that it is not functus officio and retains the power to review the consent judgment under Section 80 of the Civil Procedure Act. The court emphasized that consent judgments are binding unless obtained through fraud, misrepresentation, collusion, or mistake. The Applicant failed to establish any such grounds, and the court dismissed their application to set aside the consent judgment. Additionally, the court found no merit in granting leave to cross-examine Dr. Martin Oloo, as the Applicant did not prove the advocate lacked authority.

Remedies

Contract Value

Legal Principles

• The court emphasized that a consent judgment is a binding agreement between parties, akin to a contract, and must be upheld unless obtained through fraud, misrepresentation, or other vitiating factors. This principle was central to dismissing the Applicant's request to set aside the consent judgment, as the Applicant failed to demonstrate any such grounds.
• The Applicant bore the burden of proving that the consent judgment was vitiated by fraud, collusion, or lack of authority. The court found no evidence meeting this burden, as the Applicant did not demonstrate that the advocate lacked instructions or that the trustees were unauthorized.
• The court noted that allegations of fraud require proof at a standard above a balance of probabilities but below beyond reasonable doubt. The Applicant's claims of fraud against the advocate were dismissed due to insufficient evidence meeting this threshold.

Precedent Name

• Board of Trustees National Social Security Fund versus Micheal Mwalo
• Brookbond Liebig (T) Ltd Vs Mallya
• S M N vs Z M S & 3 Others
• Kenya Commercial Bank Ltd v Specialized Engineering Company Ltd
• Benard Mwove Nzyuko -vs- Patrick Kaloki & Lilian Kamanthe
• Flora N. Wasike vs Destimo Wamboko

Key Disputed Contract Clauses

• The JVA included provisions for Gambella to pay Kshs 6 million in advance rent and a monthly fee for the church's relocation during construction. The Applicant alleged they received no monies, but the court confirmed the payment was made, reinforcing the enforceability of the agreement's financial terms.
• The Applicant disputed the legal capacity of the trustees (Lihanda, Mogita, Mudaki) to sign the JVA, claiming Rev. Lihanda was not a registered trustee and that Mogita and Mudaki's signatures were forged. The court found no evidence of revocation of the Trust Deed or lack of authority, affirming the trustees' capacity to execute the agreement.
• The JVA stipulated a 70:30 benefit-sharing ratio between Gambella Investment Limited and the Pentecostal Assemblies of God for the development of residential apartments and other buildings on the church land, with the church retaining a 30% share. The Applicant challenged the validity of this clause, alleging unauthorized execution, while the Respondent enforced it via the consent judgment.

Cited Statute

• Civil Procedure Act
• Trustees (Perpetual Succession) Act, Cap. 164

Judge Name

Passage Text

• The Applicant has not provided evidence to suggest that the advocate committed fraud. An advocate is presumed to have received instructions, including settling a matter for their client. Therefore, I find no reason to conclude that the counsel was involved in any fraud so far.
• The Applicant has failed to prove any of the vitiating factors (fraud, mistake, misrepresentation) required to set aside the consent judgment. No evidence was presented to demonstrate the advocate lacked authority to settle the suit.
• A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.

Damages / Relief Type